Some prominent voices on the left called earlier this year for Supreme Court Justice Sonia Sotomayor to retire while Joe Biden was still president, so a Democrat could nominate her replacement, regardless of who won the election. Sotomayor, 70, is the oldest liberal justice and has Type 1 diabetes. Advocates feared a repeat of what happened with liberal Justice Ruth Bader Ginsburg, who declined to retire during President Barack Obama’s tenure and died on the bench in 2020, while Donald Trump was in office, the Washington Post reports. The vacancy allowed Trump to nominate Amy Coney Barrett, cementing a powerful 6-3 conservative supermajority. Now, with Trump set to return to the White House and Republicans poised to take control of the Senate, some Democrats are renewing those calls for Sotomayor to step down during the lame-duck period before the presidential inauguration in January. “This could be Democrats’ last chance to fill her seat for some time,” said Josh Barro, author of the Very Serious newsletter. “It has been possible, historically, to go 12 or 14 years without simultaneous control of the White House and the Senate, after initially losing that control. She could be well into her 80s by the next time she has a good opportunity to retire.” Trump’s victory has inevitably sharpened speculation about what the Supreme Court senior justices will do in the months ahead and how the parties might handle any high court vacancies. Besides Sotomayor, the two oldest justices are Republican nominees, Clarence Thomas, 76, and Samuel Alito Jr., 74.
Two members of the conservative legal movement, speaking on the condition of anonymity to discuss a sensitive issue, told The Washington Post last month that it’s unlikely either justice would step down during a Trump presidency. Neither Thomas nor Alito responded to a request for comment Wednesday. But Mike Davis, a legal adviser to Trump, posted on X: “Prediction: Justice Sam Alito is gleefully packing up his chambers.” Any new vacancies would give Trump — who also appointed Justices Neil M. Gorsuch and Brett M. Kavanaugh during his first term — an extraordinary imprint on the court. If at least two justices stepped down during his second term, he would be able to boast of nominating the majority of justices currently serving and of having the most appointments by any president since Franklin D. Roosevelt.
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